Hero Fruit Jar Co. v. Grant — 32 N.Y. St. Rep. 209

Majority

p. 209

The Hero Fruit Jar Co., App’lt, v. Hugh J. Grant, sheriff, Resp’t.

(Supreme Court, General Term, First Department

Filed June 6, 1890.)

Headnote

I. Sheriffs — Substitution of indemnitors — Notice—Code Crv. Pro.,, §§ 1431-1427.

Where the application to substitute indemnitors as defendants is made by the officer, notice must be given to the indemnitors or their attorney as. well as to the attorney for the plaintiff.

2. Same.

The fact that the plaintiff’s attorney acted in procuring the indemnity does not excuse a failure to serve the indemnitors, as in so doing he acted for the plaintiff, and in no manner represented their interests.

Appeal from order of special term substituting indemnitors as defendants.

J. H. V. Arnold, for app’lt; W. F. Severance, for resp’t.

The condition upon which applications of this kind may be granted is that where the application is made by the officer, notice thereof must be given to the indemnitor or his attorney and also to the attorney for the plaintiff. In this case no notice whatever was given to the indemnitors, and the only service was upon the attorney for the plaintiff, who, it is said, acted for the indemnitors in and about giving the indemnity.

It is clear that this notice was entirely insufficient, as the attorney in procuring the indemnity was acting for the plaintiff, and in no manner represented the interest of the indemnitors. The language of the Code is explicit that notice must be given to the indemnitors or their attorney and also to the attorney for the plaintiff. The point that this objection was not taken below cannot avail, because without proof of such notice the court never acquired jurisdiction.

The order appealed from should be reversed, with ten dollars costs and disbursements.

Van Brunt, P.* J, Brady and Daniels, JJ., concur.